Court upholds restitution order made after ninety-day deadline
on Jun 16, 2010 at 2:00 pm
DISCLAIMER: Akin Gump and Howe & Russell represented the petitioner in this case, but I was not involved in the proceedings.
The Mandatory Victims Restitution Act of 1996 (“MVRA”) provides that a court “shall order” particular defendants to make restitution to their victims. Under 18 U.S.C. Â§ 3664(d)(5), â€œif the victimâ€™s losses are not ascertainable by the date that is 10 days prior to sentencing,â€ the court â€œshall set a date for the final determination of the victimâ€™s losses, not to exceed 90 days after sentencing.â€ On Monday, in Dolan v. United States (No. 09-367), the Court held â€“ by a vote of five to four â€“ that even after the ninety-day deadline has passed, a sentencing court â€œretains the power to order restitutionâ€”at least whereâ€¦the sentencing court made clear prior to the deadlineâ€™s expiration that it would order restitution, leaving openâ€¦only the amount.â€
Justice Breyer wrote the opinion of the Court, which was joined by Justices Thomas, Ginsburg, Alito, and Sotomayor. Â Because Section 3664(d)(5) does not specify a consequence for missing the ninety-day deadline, the Court sought to classify the deadline as one of three types:Â (1) a â€œjurisdictionalâ€ limitation, which absolutely prohibits an action after the deadline has passed; (2) a â€œclaims processingâ€ rule, which regulates the â€œtiming of motions or claimsâ€; or (3) a legally enforceable, â€œtime-related directiveâ€ that â€œdoes not deprive a judge â€¦of the power to take the action to which the deadline applies if the deadline is missed.â€
Based on â€œthe language, the context, and the purposes of the statute,â€ the Court concluded that the ninety-day deadline fell into the third category.Â First, the Court explained, when a statute leaves unspecified the consequence of a timing-provision violation, federal courts do not ordinarily â€œimpose their own coercive sanction.â€ The statuteâ€™s use of the word â€œshall,â€ the Court continued, does not require a contrary practice. Second, the Court emphasized that the statute was primarily intended to advance the victimâ€™s interest in restitution:Â it provides that a court â€œshallâ€ order restitution regardless of the defendantâ€™s economic circumstances. Third, the ninety-day limit is intended primarily to benefit the victim, rather than provide certainty to the defendant.Â Fourth, if a judge who missed the deadline could not order restitution, crime victims â€“ â€œwho likely bear no responsibility to the deadlineâ€™s being missed and whom the statute also seeks to benefitâ€ â€“ would likely suffer. Â Â Fifth, the Court reasoned, it had â€œpreviously interpretedÂ similar statutesâ€ â€“ such as the Bail Reform Act, in United States v. Montalvo-Murillo (1990) â€“ â€œsimilarly.â€Â Sixth, and finally, the defendant can often mitigate the possible harm threatened by a missed deadline by â€œsimply tell[ing] the court,â€ which â€œwill then likely set a timely hearing or take other statutorily required action.â€
The Court rejected Dolanâ€™s argument regarding the harm that might flow from a missed deadline, and in particular his claim that a delay might postpone, for more than ninety days, his ability to appeal his sentence. But although it noted â€œstrong arguments [that] favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount,â€ it ultimately declined to decide whether a sentence was sufficiently final so as to be appealable when the amount of restitution was left open.
In an opinion joined by Justices Stevens, Scalia, and Kennedy, the Chief Justice dissented. Â In his view, Section 3664(d)(5) is a â€œlimited exceptionâ€ to the general rule that a sentence may not be modified once it is imposed. Â Because the sentencing judge in this case exceeded the ninety-day limit established in Section 3664(d)(5), the otherwise-applicable general rule controls. Â Â The Courtâ€™s decision to the contrary, the dissent contends, rests on â€œa series of irrelevancies that cannot trump the clear statutory text.â€